IN THE CASE OF:	  

		BOARD DATE:	  13 NOVEMBER 2008

		DOCKET NUMBER:  AR20080013244 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his undesirable discharge (UD) be upgraded to honorable. 

2.  The applicant states, in effect, he believes his discharge was in error because his time was served.  He also states that if draft dodgers received amnesty, he should be entitled to have his discharge upgraded.   

3.  In support of his application, the applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge). 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military records show he enlisted in the Regular Army, in pay grade E-1, on 18 September 1967, for 3 years.  He completed his basic and advanced training and was awarded military occupational specialty 71P, flight operations specialist.  

3.  The applicant was reported absent without leave (AWOL) on 19 April 1968 and returned to military control on 1 May 1968.

4.  The applicant was promoted to pay grade E-3 on 6 July 1968 and to pay grade E-4 on 18 December 1968.

5.  On 23 January 1969, the applicant was punished under the provisions of Article 15, Uniform Code of Military Justice, (UCMJ), for failing to obey a lawful order on 21 January 1969.  His punishment included a forfeiture of $34.00 pay per month for one month, a reduction to pay grade E-2 (suspended for 30 days), and 14 days extra duty.

6.  On 25 June 1969, the applicant was punished under the provisions of Article 15, UCMJ, for failing to obey a lawful order on 23 June 1969.  His punishment included a forfeiture of $30.00 pay per month for one month.  

7.  On 2 April 1970, the applicant was punished under the provisions of Article 15, UCMJ, for absenting himself from his appointed place of duty on 17 March 1970.  His punishment included a reduction to pay grade E-3 and extra duty for 2 hours per day for 14 days.

8.  On 26 May 1970, the applicant was convicted by a special court-martial of one specification of being disrespectful toward his superior commissioned officer on 15 May 1970, three specifications of willfully disobeying lawful commands from his superior commissioned officer on 15 May 1970, and one specification of wrongfully communicating a threat to a fellow Soldier on 15 May 1970.  The applicant was sentenced to a reduction to pay grade E-1, a forfeiture of $50.00 pay per month for three months, and confinement at hard labor for three months. The sentence was adjudged on 17 June 1970.

9.  On 17 June 1970, the applicant was reduced to pay grade E-1 and confined to the US Army Europe and US Forces Support District Baden-Wuerttemberg Confinement Facility.  He was released from confinement on 16 September 1970.

10.  On 29 October 1970, a Report for Suspension of Favorable Personnel Actions reported the applicant's request for discharge for the good of the service was being processed and his courts-martial action was being held in abeyance pending outcome of the Chapter 10.

11.  All the documents containing the facts and circumstances surrounding the applicant's discharge are not present in the available records; however, his records contain a copy of Special Orders Number 69, dated 26 March 1971, which show the reason for his reduction as, discharge for the good of the service, under the provisions of Army Regulation 635-200.

12.  The applicant was discharged on 2 April 1971, in pay grade E-1, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service, in lieu of court-martial, with his service characterized as under conditions other than honorable.  He was credited with 3 years, 3 months, and 2 days net active service and 104 days lost time due to AWOL and confinement.

13.  There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) within its 15-year statute of limitations for an upgrade of his discharge.

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation provided in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service, in lieu of trial by court-martial.  An UD was normally considered appropriate.  The separation authority may direct a general discharge if such a discharge is merited by the Soldier's overall record. 

15.  Army Regulation 635-200, paragraph 3-7a, of this regulation provides that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be inappropriate.

16.  Army Regulation 635-200, paragraph 3-7b, also provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his UD.  He has not shown error, injustice, or inequity for the relief he now requests.  He was properly discharged and he has not shown otherwise.

2.  The applicant's contentions were considered; however, they do not support an upgrade of his UD.  He had previously been convicted by special court-martial and was again pending trial by special court-martial.  Courts-Martial action was placed in abeyance pending the outcome of his request for discharge for the good of the service.  His request for discharge was approved and it was directed that he received an UD.  He voluntarily requested discharge in lieu of facing a court-martial and instead waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged and/or wrongfully discharged.

3.  In the absence of evidence to the contrary, Government regularity is presumed.  It appears the applicant’s administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights. 

4.  The evidence shows the applicant’s misconduct diminished the quality of his service below that meriting a general or fully honorable discharge.  

5.  There is no evidence that the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

6.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ____X___  ___X____  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _  X _______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080013244



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ABCMR Record of Proceedings (cont)                                         AR20080013244


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